PREMEXTRADVICE

15 May 2013

It's been a busy month for PI at
the RCJ. Here are my tips for recommended reading from the High
Court and Court of Appeal covering everything from paddling pools
and black ice to costs budgeting under the amended CPR.

1. Occupiers'
Liability:Tacagni v Cornwall County Council24/4/13, CA

The Claimant fell from a raised
pathway to the road below. There was a fence along part of the path
but after the fence ended the Claimant left the path and strayed
over an area of grass. She fell over the edge and was injured. The
trial judge found the local authority in breach of the Occupiers'
Liability Act 1957 for failing to erect a fence which would have
prevented a fall. The Court of Appeal overturned that finding
saying that the local authority need not have anticipated a
pedestrian departing from the path and crossing almost five metres
of grass towards the drop. The material factor was the degree of
care that was to be expected of an ordinary visitor under s.2(3) of
the 1957 Act.

This isn't a PI case but is
directly relevant to all PI practitioners getting to grips with the
new costs budgeting rules. The applicants applied to revise (or
rectify) an approved costs management order made with the
respondent to show that the approved budget excluded success fees
and after the event insurance premiums. In accordance with the new
rules, the parties had exchanged costs budgets and a judge approved
the applicants' budget of £82,500. The respondent's solicitor then
pointed out that the approved costs budget did not say that it
excluded a success fee and the ATE insurance premium and argued
that the applicants should not be permitted to recover any sum over
and above the approved costs budget. The exclusion was a mistake of
drafting on the part of the applicants' solicitors. The court
decided that 'in an ordinary case' it would be extremely difficult
to persuade a judge that inadequacies or mistakes in preparation of
a costs budget should be subsequently revised or rectified.
However, the instant case was 'very special' because the respondent
had always known about the ATE premium and that the applicants
intended to recover a success fee. Further, the applicants had used
the wrong pro forma for the costs budget and the correct form
contained an express exclusion of success fees and ATE premiums.
The judge concluded it was 'not appropriate to penalise a party
because it failed to tick a box on a form'.

3. Breach of duty:Cockbill
v. Riley[2013] EWHC 656 (QB)

The teenage Claimant attended a
barbeque at the Defendant's house. Another guest brought a paddling
pool and filled it in the garden. The children at the party began
jumping into the paddling pool but when the Claimant attempt this
he landed awkwardly and was catastrophically injured. It was common
ground that the Defendant owed a duty of care which extended to
keeping an eye on the children's behaviour and if necessary
intervening in a reasonable manner, though not so as to spoil the
party but it was 'unrealistic' to contend that the use of a
paddling pool at a party attended by teenagers created a
foreseeable risk of significant injury, or justified a formal risk
assessment.

4. Breach of duty:Smith v.
Fordyce[2013] EWCA Civ 320

The Defendant had been driving the
Claimant to work in wintery weather. The car skidded on black ice
and crashed. The Defendant had not be travelling at an excessive
speed, had no reason to anticipate icy road conditions and had
skidded on black ice which was not visible and could not have been
reasonably foreseen. In those circumstances, the Defendant was not
negligent.

The Claimant, who was from Jersey,
had suffered serious brain damage when he was 8 years old. There
would be difficulties in quantifying his loss of earnings claim
because, amongst other things, the trial judge would need to
consider both English and Jersey employment law and statistics
which were proving troublesome to obtain. The claimant's
representatives requested permission to rely on a report from an
employment expert to combat those difficulties but were refused.
Globe J. commented, obiter, that permission to rely on employment
experts was 'not normally' granted for loss of earnings claims